Preventing Charter Schools from Slipping into a Constitutional Accountability Loophole

In June 2022, when the Fourth Circuit ruled in Peltier v. Charter Day School, Inc. that charter school students are not beyond the reach of Constitutional protections, it prevented these institutions from being havens for blatant gender discrimination.  

The defendant in this case, Charter Day School (CDS) in Brunswick County, North Carolina, is a public charter school. At the center of the controversy is the school’s restrictive dress code, which demands that female students wear a “skirt, jumper, or skort” at all times outside of PE class or field trips.

The case was brought by three parents on behalf of their children who attended CDS after their concerns regarding the dress code were brushed off by school administration. One parent was prompted to reach out after her first grader was pulled from class and made to sit in the principal’s office and miss class all day merely because she wore shorts. Students testified that the skirt requirement prevents them from participating comfortably in regular school activities, such as playing freely at recess and more serious instances such as participating in emergency drills where they must kneel on the floor for fear of being teased by male students.

How a student dresses and presents themselves affects the way they interact with their environment and their perceptions of themselves and each other. This makes equity in dress codes paramount to students’ ability to fully participate in their education. Though these rules impact all students’ ability to fully participate in their education, the plaintiff’s legal complaint was limited to the discriminatory effect of the skirt requirement on cisgender girls, so this post will focus on that population.

Gender Discrimination in the Dress Code

The school administration in this case made essentially no effort to hide the fact that the skirt requirement was in place to reinforce and perpetuate gender stereotypes. The school prided itself on operating “more like schools were 50 years ago,” and the dress code was an implementation of this philosophy. CDS argued that this is all part of the “expanded choice of educational opportunities” provided for in the charter school statute.

Beyond the more legitimate goal of creating order and uniformity in the classroom, a school official freely admitted the dress code was meant to “preserve chivalry and respect” and to encourage female students to be treated differently from male students. Quite explicitly, CDS wanted the girls to be treated “more gently” than boys. A school official explained that the requirement was meant to encourage “young men [] to hold the door open for the young ladies and to carry an umbrella, should it be needed.” This shows that gender discrimination was not just a consequence of the binary construction of the dress code, but its explicit goal.

However, the court completely rejected the idea that gender discrimination can be classified as an “educational opportunity” or relevant to an educational goal.

The idea that that gender discrimination, thinly veiled as traditional education, is a dangerous one. It leads to the objectification and marginalization of some students while treating white, male students as the default of propriety, which leads to unequal power dynamics among peers in the classroom.

While the dissent and the school administration wanted to look at the rules in the most “positive” light (of attempting to teach boys to be gentle and courteous with girls), this willfully disregarded the negative views the dress code taught—what it taught boys to believe about their peers and what it taught girls to believe about themselves.

The Need for Constitutional Accountability

After losing in the Fourth Circuit, CDS appealed its case to the Supreme Court. It filed a writ of certiorari in September 2022. Considering the current makeup of the Court and its recent precedent, if certiorari is granted, it could undo the effort of the lower courts to protect students receiving a public education from blatant gender discrimination.

Charter schools educate millions of children in almost every state in the country. According to data from the National Center for Education Statistics, there are charter schools in 44 states and DC. Enrollment in charter schools has skyrocketed from 1.6 million students in 2009 to 3.3 million students in 2018. And nearly all public schools require students to follow a dress code, with almost 20% requiring student uniforms. This means the court’s ruling on the legitimacy of explicitly sex-based dress codes could expand to have a larger effect on schools across the country with all kinds of dress codes.

If charter schools like CDS are allowed to hide behind the involvement of private management companies to avoid constitutional accountability, they would be able to discriminate and call it “student choice”—all while collecting money from the state. This would mean that the state would not only be bankrolling practices that serve no real educational value and harm students, but practices that would be clearly unconstitutional if a traditional public school just down the road implemented them.

If charter schools are funded by the state, they must be held to the same standards under the Constitution as traditional public schools and their students must enjoy the same protections. What is more, blatant discrimination, or discrimination veiled as operating “more like schools were 50 years ago” is not a valuable educational option. In this case, the Fourth Circuit closes a loophole that would treat quasi-public entities and private entities like entirely private institutions beyond the reach of constitutional regulation. If charter schools are left in an unreachable space without accountability, students would be left unprotected from the blatant gender discrimination CDS pursued, and possibly even worse.

Grace Nelmes

Grace Nelmes is a member of the University of North Carolina School of Law’s class of 2024 and serves as a Content Editor for Volume 4 of the North Carolina Civil Rights Law Review.